Ultrasound Debate Underway in Senate Committee

Senate Committee hears testimony on Patrick's ultrasound bill

A hearing in the Senate's State Affairs Committee on Sen. Dan Patrick's ultrasound-before-abortion bill kicked off this morning with witnesses speaking on both sides of the issue – and the expected amount of push-back from senators in favor of the measure on those witnesses skeptical of it.

The ultrasound bill, Senate Bill 16, was given "emergency" status by Gov. Rick Perry during a Texas Rally for Life event last month at the Capitol, which has allowed the Senate to call it up for a hearing during the session's first 30 days. As such, members of the committee gathered today to hear testimony and ask questions regarding the bill, which would require a women to have an ultrasound at least two hours prior to undergoing an abortion. The bill would also require that the doctor display the fetal image and play the sound of the fetal heartbeat (if any) for the woman while simultaneously describing in detail the fetal development. At the start of today's hearing, Patrick – who has been working on this issue for as long as he's been in the Lege – laid out the details of a committee substitute for SB 16; notably, the change would allow a woman to "choose not to view" the fetal image or to hear the heartbeat. (Of course, the wording in the committee substitute, which made the rounds Feb. 8, isn't clear regarding the supposed option to not see the image or hear the heartbeat – see page 5 of the substitute bill posted here.)

Notably, however, the new language does not cover the requirement that the doctor describe fetal development – this, according to the bill, would include description of "the dimensions of the embryo or fetus, the presence of cardiac activity, and the presence of external members and internal organs" – which was among the problems that Dr. Matt Romberg (son of Women's Health and Family Planning Association of Texas' former CEO Peggy Romberg), a private practice ob-gyn in Round Rock sees with the bill, he told the committee. Notably, the bill contains no exception at all in cases of incest, rape or, as Romberg put it, in cases where there is "gross fetal abnormality." That means, in essence, that a woman facing a pregnancy termination because her fetus likely won't live through gestation would be faced with having another ultrasound and description of her dying fetus, prompting a situation where the doctor would have to say "let's listen to the heartbeat one more time of your fetus that is not going to survive," said Romberg, "let's count the number of limbs on this fetus that's not going to survive."

In what has become an example of the sort of reflexive response-without-thought on this issue, Sen. Tommy Williams, R-The Woodlands, countered Romberg's testimony by asking, "You don't think that [this bill's requirements] would be affirming of her decision" to terminate the pregnancy?

Indeed, according to Patrick, the point of the bill is to empower women and ensure informed consent to abortion – "this really goes to informed consent about what is happening," he said. Lawmakers have been successful in creating so-called "informed consent" measures over the last decade, including creation of the Women's Right to Know pamphlet which includes information on fetal development, as well as misinformation, including that abortion may lead to breast cancer. (This passage remains despite clear evidence that it is not true – a circumstance that suggests to some that the information provided by the state prior to abortion is less about empowering women and more about trying to scare them out of exercising their right to reproductive privacy and control. Also noteworthy is that the WRTK already provides the fetal development information that Patrick's bill again suggests must be provided to the woman.)

Although the doctors testifying this morning noted that ultrasound is typical prior to an abortion – this can help a doctor confirm gestational age, for example, or offer information about the health of a woman's uterus – several of the doctors testifying noted that the decision about when and if the test should be done is best left up to a doctor and patient, not to politicians. Sen. Robert Duncan, R-Lubbock, the committee chair bristled a bit to such comments made by Dr. Margaret Thompson, saying that he believed her opposition to the bill appeared to him "more political than scientific." That was not the case, she assured him. Rather, she said earlier, her opposition to the bill was that it was "bad medicine, bad law, [and] bad public policy." If the goal of the law is to reduce the number of abortions in Texas, she said, a better approach would be to support "family planning services, comprehensive sex education" and other programs that ensure the economic well-being of women and their families.

The notion that the proposed law would be an intrusion was not universally shared by the witnesses, including Dr. Linda Flower – a member of the Texas Physicians Resource Council, which had a hand in drafting the WRTK pamphlet – who said the law is just another tool to ensure that in an "emotionally charged" situation a woman is given enough information to "think clearly and consider the options," she said. "It is in the best interest of the pregnant woman that she understand what is going on inside her body before she has it removed."

But Leslie Griffin, a professor of constitutional law at the University of Houston Law Center testified that the bill's provision that would require a doctor to describe the fetal development to a pregnant woman would likely be a First Amendment violation. In this scenario the pregnant woman could be considered a "captive audience," under that legal doctrine, she said, a woman "cannot be compelled to listen." Additionally, she noted, the law would make a doctor a "compelled speaker," which also raises First Amendment questions.

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